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NAVY | DRB | 2005_Navy | ND0500971
Original file (ND0500971.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT


 FOR OFFICIAL USE ONLY

ex-AMEAN, USN
Docket No. ND05-00971

Applicant’s Request
The application for discharge review was received on 20050517. The Applicant requests his characterization of service received at the time of discharge be changed to honorable and the narrative reason changed to “other”. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051013. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the characterization of the discharge and the reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application and attached document/letter:

“The reason why I ask for an upgrade, is for the fact I was medically treated wrong and when I tried for help through the chain of command at San Diego Naval Medical Center, nothing happened. I had no choice but to return home so I could receive proper medical treatment, which I have medical records and pictures for proof of my request”.

“To whom it may concern,

I am asking for an upgrade of my discharge, for the fact of improper medical treatment that I received at San Diego naval medical center. I even tired to work through the chain of command, but I had no such help. My medical records from my civilian hospital can show the dates and extent of treatment I received. I am still in need of medical treatment, which will be finished up with a civilian doctor. I have no grudge against the staff at SDNMC, because people make mistakes.

I only hope that everything contained in front of whom is reading this knows why i am asking for an upgrade.

I will always love my country, and i will always have the NAVY in my heart!

Sincerely,
[signed]
J_ A. T_ (Applicant)”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Medical Records from Contra Costa Health Center (46 pgs)
Letter from Applicant dtd May 31, 2005
Applicant’s DD Form 214 (2)
Official Transcript from Education Direct (2)
Diploma from Education Direct dtd July 26, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010608 – 20010807              
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010808             Date of Discharge: 20040930

 Length of Service (years, months, days):

         Active: 01 00 25         (Excludes lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 725 days
         Confinement:              23 days

 Age at Entry: 21

 Years Contracted: 4 (12 month extension)

 Education Level: 08                                 AFQT: 49

 Highest Rate: AMEAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*    OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal.
* Not Available


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS) /MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

020705:  Applicant taken into custody by Martinez, CA Police Department on failure to appear warrant.

020728:  Released from civil confinement, surrendered on board USNH San Diego, CA.
020802:  Applicant to unauthorized absence from MEDCEN San Diego, CA at 0730 on 020802.
020901:  Declared a deserter.

 040727:  Applicant surrendered on board NRSW TPU San Diego, CA at 0430 on 040727 (725 days/surrendered). Retained on board for disposition.
040920:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct commission of a serious offense.
040920:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
040928:  Commanding Officer, NRSW TPU, forwarded the administrative discharge package to CNPC (PERS-4832) . Commanding Officer’s comments: “AMEAN T_ (Applicant) submitted a request for a conditional waiver under MILPERSMAN 1910-226 along with supporting documentation for his request. In his request, AMEAN T_ (Applicant) identified several significant problems that he was having with his medical treatment while on active duty. AMEAN T_ (Applicant) provided documentation of surgeries that were performed once and then were repeated. AMEAN T_ (Applicant) has serious concerns about the medical treatment that he was receiving from his assigned medical doctor. He made efforts to change his medical provider, but to no avail. The situation remained the same. Given his significant medical issues at the time of his unauthorized absence, I believe that adequate extenuating circumstances existed to mitigate an otherwise serious offense that would warrant Other Than Honorable characterization of separation. Therefore, I authorize his separation from the Naval Service by reason of misconduct due to commission of a serious offense with a General Discharge, an SPD code of JKQ, and a reenlistment code of RE-4.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040930 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing, by a preponderance of the evidence, that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred. A general (under honorable conditions) discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record. The Applicant’s service was marred by an unadjudicated violation of UCMJ Article 86 (unauthorized absence, 725 days) violation. A violation of Article 86 in excess of 30 days is defined as the commission of a serious offense, the misconduct for which the Applicant was discharged. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. Separation under these conditions generally results in a less than honorable characterization of service. Relief is not warranted.

The Applicant contends that his unauthorized absence is justified because he was not receiving proper medical treatment. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. Nevertheless, the Applicant bears the burden of presenting substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced evidence, to support his contention of improper medical care. The NDRB does not consider the Applicant’s contention of improper medical treatment to be of sufficient nature to exonerate his misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition. The record clearly reflects his willful misconduct, demonstrating he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant requested that the reason for his discharge be changed to “Other”. The NDRB, under its responsibility to examine the propriety and equity of a discharge, will change the reason for discharge if such a change is warranted. The service record documents 725 days of unauthorized absence. This extended period of unauthorized absence clearly substantiates the misconduct by commission of serious offense, which resulted in the Applicant’s discharge. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing medical, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Issue is without merit, relief denied.

There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant provided for the Board’s consideration a letter, a transcript, a diploma and 46 pages of medical records documenting his medical treatment while in an unauthorized absence status. After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86 (unauthorized absence in excess of 30 days).

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ” .
The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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